Due Process (5th and 14th Amendments)

Fourteenth Amendment

Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections.

Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens of their state of residence; the citizenship of African Americans was thereby established and the effect of the Dred Scott Case was overcome. The section forbids the states to abridge the privileges and immunities of U.S. citizens, to deprive any person of life, liberty, or property without due process of law (a similar provision restraining the federal government is in the Fifth Amendment), and to deny any person the equal protection of the laws.

Section 1 has been used extensively by the U.S. Supreme Court to test the validity of state legislation. The privileges and immunities of citizenship have never been defined by a majority of the court, but some justices have argued that among the activities envisaged are freedom to cross state boundaries and freedom to gather for peaceable discussion of legislation. The court has preferred to base its decisions on the due process and the equal protection clauses, which apply to all persons (the term person was soon applied to corporations as well as human beings) irrespective of citizenship.

Due Process of Law

In the early view of the court, a deprivation of life, liberty, or property simply meant the punishment for crime. The requirements of due process would be met by fair procedure, including notice to the defendant and an open trial with the right to counsel. In time, however, the court concluded that due process was not limited to procedural considerations but had a substantive aspect as well. Thus, even if proper legal procedure were observed, the substantive ground on which a person was deprived of life, liberty, or property might in itself violate due process. The constitutionality of much state legislation was opened to question, and so many laws were attacked that at times about one third of the cases before the Supreme Court dealt with due process. In early due process cases the court did not place limitations on traditional exercises of the police power. The constitutionality of state economic regulation was upheld in such early Fourteenth Amendment precedents as the Slaughterhouse Cases (1873) and Munn v. Illinois (1877). However, subsequent due process interpretations of the Fourteenth Amendment did severely restrain the power of the states to legislate on economic matters.

Equal Protection

The equal protection clause, which was also brought to bear on the economic legislation of the states, was held to invalidate restraints on corporations from which other businesses were exempted. In several early cases this clause was used to foster individual economic rights, with the court striking down state laws that prevented aliens from pursuing certain occupations. However, African Americans who claimed that the discrimination they suffered at the hands of private persons (e.g., exclusion from hotels) denied them the equal protection of law were refused redress by the court, which held that the Fourteenth Amendment was concerned with official state action only. In 1896, in the Plessy v. Ferguson case, the court enunciated the view that the states might provide segregated facilities for African Americans (e.g., in education), so long as they were equal to those afforded white persons: the so-called separate but equal doctrine.

The court substantially maintained the views outlined above until the 1930s, when drastic reinterpretations were made. (For factors producing the change, see Supreme Court, United States.) The court thereafter permitted state legislatures to make economic regulations without regard to the question of whether the businesses concerned were dedicated to the public interest. The states, it was also held, might meet the requirements of equal protection even if distinctions based upon
"reasonable classifications"
were made. Thus, corporations, with their great potential power and size, might reasonably be subjected to more severe restrictions than other types of business organizations. While the states were given greater freedom in enacting economic legislation, their power to limit personal liberties was brought under greater restraint.

Gradually, the protection afforded by the Bill of Rights against federal actions was almost entirely extended to the states. In a number of decisions, it was held that the provisions of the First Amendment were made applicable to the states by the substantive aspect of the due-process clause, in the so-called incorporation doctrine. Thus, the states, like the federal government, were forbidden to favor or suppress any religious establishment or to deny freedom of speech, of the press, and of peaceable assembly. With the new attitude of the court, the equal protection clause became one of the main weapons of those who were determined that African Americans should enjoy the same rights as other Americans. Although there had been decisions forbidding segregation on interstate transportation and ruling that state courts cannot enforce a restrictive covenant (an agreement that a buyer will not resell to certain categories of persons, e.g., African Americans or Jews), it was not until 1954 that the
"separate but equal"
doctrine was firmly repudiated (see Brown v. Board of Education of Topeka, Kans.).

In recent years, the Supreme Court has also used the equal protection clause to invalidate legislation discriminating against women, to order the apportionment of state legislatures on the basis of population alone. The Court has also used the due process clause to extend to the states the protection against limitations on the right of privacy and women's right to an abortion (see Roe v. Wade). The 1986 case of Bowers v. Hardwick, however, came as a blow to the right of privacy. The Court ruled that individual state antisodomy laws were constitutional, and thus that the right of privacy was not violated by laws criminalizing homosexual acts in those states, but in 2003 the Court reversed itself and voided all antisodomy laws.

Sections 2–5

Section 2 provides for apportionment of membership in the House of Representatives on the basis of the whole state population, excluding Native Americans not taxed. A supplemental provision, intended to protect African-American suffrage but never implemented, allows reduction of the congressional representation of a state if male citizens over 21 years old are forbidden to vote. (The main effective constitutional guarantee of African-American suffrage has been the Fifteenth Amendment (adopted 1870), which forbids the United States or any state to abridge the right to vote on account of race, color, or previous condition of servitude.) Section 3 of the Fourteenth Amendment excludes from political office persons who, having sworn to uphold the U.S. Constitution (e.g., army officers and members of Congress) violate this oath, as in the case of those who aided the Confederacy in the Civil War; Congress can remove this disability by a two-thirds vote of each house. Section 4 confirms the public debt but makes void all claims arising from credit extended to the Confederacy or from the loss of slaves. By Section 5, Congress is empowered to enact legislation enforcing the foregoing sections.

Bibliography

See M. K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); W. E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Document (1988).

A primary source is a work that is being studied, or that provides first-hand or direct evidence on a topic. Common types of primary sources include works of literature, historical documents, original philosophical writings, and religious texts.